The Fair Work Commission recently released its 2014-2015 Annual Report which shows that applications from individuals under the general protections provisions of the Fair Work Act 2009 have increased by 17.5% in 2014–15 in comparison to 2013-14. A large proportion of these general protections claims were involving a dismissal.
This is a significant increase and serves as a reminder to employers of how important it is to ensure that terminations are not undertaken on the basis of employees exercising workplace rights.
Under the Act employees are able to bring a general protections claim against their employer where they believe they have been treated adversely due to them exercising a workplace right. This may occur where an employee feels they have been discriminated against, victimised or have experienced unfair treatment in the workplace. It is unlawful for an employer to take ‘adverse action’ against an employee because they either have a workplace right, have exercised a workplace right, or propose to exercise a workplace right.
What is a workplace right?
Some examples of the workplace rights that employees may have include:
- Benefits under industrial instruments including leave entitlements such as annual leave and personal carers leave
- Benefits under workplace law such as parental leave
- The right to be a member of a union
- The right to have a union representative present for the purposes of negotiating a new agreement
- The right to make a complaint or inquiry in relation to their employment, for example raising a bullying complaint or querying wages.
What does it mean to take ‘adverse action’?
Adverse action is action that is taken against an employee that:
- Injures them in the course of their employment
- Alters the employees position to their detriment
- Discriminates between them and other employees.
Examples of adverse action includes threatening to take, or actually undertaking, unwarranted disciplinary action, demoting an employee, or terminating an employee’s employment.
It is crucial that employers ensure they are undertaking a procedurally sound process when looking to terminate an employee. Employers should look at the broad picture in order to determine if there are any factors relating to an employee that may give rise to general protections risk. Any exercise of a workplace right by an employee should not take part in a decision being made to terminate the employee’s employment.
Employer rights: what to watch out for
If you are looking to terminate an employee for poor performance yet that employee has just raised a bullying complaint, employers should be careful to separately deal with both issues. If this is not done employers run the risk that the employee will infer that the termination was due to them raising the bullying complaint.
If an employee has taken excessive leave as a result of injury or illness, the employer should not look to terminate their employment on that fact, despite it potentially creating a disadvantage to the employer. Rather, employers should look at ways to facilitate the employees return to the workplace and accommodate their needs whilst they are ill or injured.
For HR Assured clients we would strongly suggest contacting the HR Assured team for assistance with any termination process. This will help to ensure compliance and reduce the risk of you facing a general protections claim.